State Water Board Water Quality Certification
On Friday, November 13, 2020, Yuba Water Agency filed lawsuits in both U.S. District Court and California Superior Court to challenge the water quality certification that California’s State Water Resources Control Board issued in July for Yuba Water’s new license for its hydroelectric project, the Yuba River Development Project.
“This is not something we wanted to do,” said Yuba Water General Manager Willie Whittlesey in an agency press release. “We tried every diplomatic option available to us. But the State Water Board’s actions pose a significant threat to Yuba Water’s long-term viability and would prevent us from being the catalyst for public safety, economic growth and prosperity that this disadvantaged community so desperately needs. This is us defending ourselves against a significant and unfair overreach.”
The certification, issued July 17, has three critical flaws that Yuba Water believes will lead to favorable court decisions.
- It significantly harms Yuba County’s disadvantaged communities
- It was created with no collaboration, public process or science and in violation of state and federal laws and regulations
- The certification’s proposed measures are blatantly unfair
Yuba Water is filing lawsuits in both California Superior Court and U.S. District Court because water quality certifications are a mixture of federal and state law under the federal Clean Water Act and California’s water quality laws, and Yuba Water must protect Yuba County’s interests to the maximum extent possible.
Petition for Reconsideration
On August 14, 2020, Yuba Water Agency submitted a petition for reconsideration with the State Water Board asking them to vacate the water quality certification. This petition was supported by extensive technical analysis (detailed below) showing that the requirements included in the certification would have devastating economic impacts to Yuba Water and the disadvantaged communities it serves.
Two months later, the State Water Board has not responded to Yuba Water’s petition or analysis. As a result, Yuba Water’s leadership felt that if the State Water Board would not hold a hearing on the certification, then there were no other options but to file lawsuits to challenge the certification in court.
Critical Flaws of the Water Quality Certification
No collaboration, public process or science
The State Water Board prepared and released this certification with no notice, no opportunity for public review or comment and no collaboration with Yuba Water.
There wasn’t even an application, as required by federal and state law, before the State Water Board for them to issue a certification because the Federal Energy Regulatory Commission determined that the State Water Board had waived its right to issue a certification when it failed to respond within one year of receiving Yuba Water’s prior application (Section 401 of the Clean Water Act gives a state one year to exercise its authority to certify or deny that a new FERC license will comply with state water quality standards).
The State Water Board asserts that it issued the certification without a pending application from Yuba Water in order to protect California’s interests in the relicensing proceedings. But environmental values were carefully addressed in the extensive, multi-year, open process that Yuba Water already went through to relicense the Yuba River Development Project with FERC.
The process included more than 250 public meetings and calls, which State Water Board staff participated in, resulting in dozens of environmental requirements that will cost more than $180 million that Yuba Water plans to accept and implement as part of a new FERC license. The State Water Board certification largely ignores the environmental values already addressed by Yuba Water and FERC during this process.
The certification’s proposed measures are patently unfair
Some of the measures included in the certification include requiring Yuba Water to mitigate for the impacts of hydraulic mining that took place during the gold rush, more than 100 years before Yuba Water Agency was created or the Yuba River Development Project was built.
Under the certification, the State Water Board’s executive director could require Yuba Water to mitigate for a federal project that it has no control over, Englebright Dam, which is owned by the U.S. Army Corps of Engineers.
Lastly, the certification places responsibility for mitigating all of the Yuba River’s water diversions on Yuba Water, in spite of the fact that the agency only diverts 11 percent of the river’s water. Eighty-nine percent is either natural flow or has been diverted or used by others.
Devastating to Yuba’s disadvantaged communities
If the State Water Board’s additional certification conditions were implemented, Yuba Water conservatively estimates the financial impact of at least $500 million, and possibly as much as more than $1 billion in loss of revenue and increased costs over the license term, expected to be 50 years.
Implementation of the certification could dramatically reduce surface-water supplies to Yuba County’s farm and ranch families, and could push the county’s groundwater basin back into overdraft.
The resulting economic fallout of this certification would significantly impair Yuba Water’s ability to meet its mission, and would present significant public safety, economic and social consequences to the people of Yuba County.
Yuba Water’s Substantial Community Investments
In the last three fiscal years alone, Yuba Water contributed $15.4 million in grants and $36.6 million in low-interest loans that directly support public safety, flood risk reduction and economic development. In 2020, Yuba Water committed to investing an additional $10 million annually in projects with significant community benefits. Collectively, these investments support Yuba County’s communities – more than half of which are disadvantaged – in real, meaningful ways.
Yuba Water continues to work with our many governmental and conservation partners on extremely valuable projects to benefit our environment, public safety and to improve the quality of life for Yuba County residents. Those projects include fish habitat and forest restoration, levee improvements, water infrastructure upgrades, groundwater quality protection, expanding water-related STEM education in Yuba County schools and much more. The State Water Board’s certification would only make it harder to implement these vitally important initiatives.
- Central Valley Flood Protection Board member and Olivehurst Public Utility District Director Mary Jane Griego’s guest column regarding Yuba Water’s importance to the future of Yuba County
- Yuba-Sutter Chamber of Commerce CEO Marni Sanders's guest column regarding Yuba Water's important investments for the future of Yuba County
The lawsuit filed on Nov. 13 will work its way through the judicial process. Yuba Water remains optimistic, however, that, upon better understanding the long-term implications of this water quality certification and the harm it could bring for the people of Yuba County, the State Water Board will reconsider and we will be able to mutually resolve these concerns.
Timeline of Key Actions
June 26, 2017: FERC issues notice that Yuba Water’s new hydropower license for the Yuba River Development Project has been accepted for filing and is ready for environmental analysis.
August 25, 2017: Yuba Water files initial application with the State Water Board for water quality certification under Section 401 of the federal Clean Water Act for relicensing of the Yuba River Development Project.
September 21, 2017: State Water Board accepts Yuba Water’s application for water quality certification and acknowledges deadline for certification action of August 24, 2018.
May 2018: FERC issues a Draft Environmental Impact Statement for Yuba Water’s Yuba River Development Project.
August 3, 2018: At direction of State Water Board staff, Yuba Water files a withdrawal and resubmittal of a request for water quality certification under Section 401 of the Clean Water Act with the State Water Board.
January 2019: Following extensive public comment and stakeholder engagement, FERC and the U.S. Army Corps of Engineers jointly issue a Final Environmental Impact Statement addressing Yuba Water and public comments on the DEIS.
January 25, 2019: U.S. Court of Appeals for the D.C. Circuit issues decision in Hoopa Valley Tribe v. FERC (Hoopa Valley), which determines a state waives its authority to impose a water quality certification on a FERC license if it doesn’t act within one year of original application, as required by the federal Clean Water Act.
July 31, 2019: State Water Board issues a Denial Without Prejudice for Yuba River Development Project three days before the one-year deadline for the last application and encourages Yuba Water to submit a new formal application for certification, which Yuba Water did not file pending Yuba Water’s request for clarification on if the State Water Board waived its authority to impose a water quality certification on the Yuba River Development Project.
May 21, 2020: FERC rules the State Water Board waived its right to act in the Yuba River Development Project application for relicensing.
July 17, 2020: State Water Board issues a water quality certification in Yuba River Development Project application for relicensing.
August 14, 2020: Yuba Water Agency files petition for reconsideration of the water quality certification.
November 13, 2020: After waiting two months for a response to the petition for reconsideration and receiving none, Yuba Water Agency files lawsuits in both U.S. District Court and California Superior Court, challenging the water quality certification.
- Appendix A Fish Passage
- Appendix B Flows and Modeling Approach
- Appendix B Model Outputs and DSS Files (zip file download)
- Appendix C Lower Yuba River Habitat
- Appendix D Lohman Ridge Diversion Tunnel Closures
- Appendix E New Colgate Power Tunnel Intake
- Appendix F Disadvantaged Communities Impacts
- Appendix G Projected Groundwater Impacts
Fact Sheet on the Water Quality Certification
Updated Nov 13, 2020